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2012 DIGILAW 649 (PNJ)

Savita Chaudhary v. State of Haryana

2012-05-01

A.N.JINDAL, HEMANT GUPTA

body2012
JUDGMENT Mr. Hemant Gupta, J.: - This order shall dispose of CWP Nos.17910, 18940 of 2010 and 3050 of 2012 wherein clause 7.2 of Housing Board Haryana (Allotment, Management and Sale of Tenements) Regulations, 1972 was amended in the year 2009 vide notification dated 4.7.2006 published on 21.7.2009 is subject matter of challenge. The relevant clause reads as under:- “7 Drawing of lots for purpose of allotment .. (1) Allotment of houses shall be made by “draw of lots” or in such other manner as may be determined by the Board. (2) Unless otherwise specified by the Board out of total number of houses/flats floated in a scheme for allotment to the eligible income categories, i.e. Economically Weaker Section, Lower Income Group, Middle Income Group and Higher Income Group, the reservation for various categories of applicants shall be as follows- ---------------------------------------------------------------------------------------------------------------------------------- Sr. No. Category reservation Percent age ---------------------------------------------------------------------------------------------------------------------------------- 1 Haryana State Government Employees :- (i) Haryana State Government Employees and Employees of 3% Boards/Corporation Improvement Trusts/State Cooperative Banks under Haryana Government who have more than five years of service at the time of application to retire (ii) Haryana State Government Employees and Employees of 2% Boards/Corporation Improvement Trusts/State Cooperative Banks under Haryana Government who have less than five years service at the time of application to retire. 2 Retired Haryana Government Employees 2% 3 Housing Board Haryana Employees 1% 4 Schedule Castes 18.5% 5 Handicapped and Blind persons 3% 6 (i) War widows, disabled soldiers, Freedom fighters (including 8% their children and grand children), defence personnel/ Ex-servicemen personnel (residents of Haryana) (ii) Paramilitary forces like Central Reserve Police Force, 2% Boarder Security Force, Indo Tibetain Board Police, Railway protection force, Central Reserve Force (residents of Haryana and legal heirs/dependent of the police personnel of Haryana killed in action) 7 Backward Classes 5% 8 Widows (excluding war widows) 2% 9 Media Persons (Accredited) 1.5% 10 Older persons/Senior Citizens 2% Total 50% ---------------------------------------------------------------------------------------------------------------------------------- The benefit of reservation to all above mentioned categories shall only be admissible to the residents/domicile of Haryana. 33% reservation in each of the above reserved categories except widows and also in general category shall be for women applicants as first/solo applicant. 33% reservation in each of the above reserved categories except widows and also in general category shall be for women applicants as first/solo applicant. In case sufficient women applicants are not forthcoming in any of the categories, balance of the houses shall be allotted to other applicants in that same category: Provided that if sufficient applicants are not forthcoming from any of reserved categories mentioned above, the balance of the reserved houses shall be allotted to the applicants in the general category. The allotment of remaining houses after the allotment to the applicants belonging to the ten reserved categories referred to above shall be made to the applicants of general category. Note :- 1. The above reservation shall be available only for residential property under Economically Weaker Section, Lower Income Group, Middle Income Group and Higher Income Group categories to be allotted under the hire purchase scheme and shall not be made applicable to other category of allottees, whether residential or commercial. No reservation shall be applicable in case of sale of property by auction. 2. The spill over unsuccessful applicants in any of the reserved categories shall not be considered again in the general pool. 3. Where no house is available for women applicant(s) in any of the reserved category, registered women applicant(s) under that reserved category shall be considered along with general applicants of that reserved category. The employees of autonomous bodies like university, employees of District Rural Development Agency and employees of the Cooperative Federations except Haryana State Cooperative Banks are not eligible for reservation under category 1.” 2. The challenge in the present writ petition is to 33% reservation in all reserved categories except widows and in the general category provided to women applicants as first/solo applicants. The grievance of the petitioner is that by creating 33% reservations for women, respondents have allotted the remaining 67% flats to men thereby offending Articles 14, 15 and 16 of the Constitution of India. Reliance is placed upon judgments of Division Bench of this Court in Neelam Rani vs. State of Punjab and others, 2010(1) SCT 588 and Ruchi Manglik and others vs. State of Haryana and others (CWP No.10072 of 2010 decided on 16.08.2010). 3. In Neelam Rani’s case (supra), this Court has considered the reservation for women in the Punjab State Education Class III (School Cadre) Service Rules, 1978 wherein 50% posts were reserved for women. 3. In Neelam Rani’s case (supra), this Court has considered the reservation for women in the Punjab State Education Class III (School Cadre) Service Rules, 1978 wherein 50% posts were reserved for women. This Court has struck down such condition by observing as under:- “34. Clause (3) of Article 15 of the Constitution empowers the State Government to make special provision for women and children to uplift their economic and social status. Therefore, fixing posts for women per se cannot be said to be violative of either Article 15 or 16 of the Constitution of India. Such reservation is a horizontal reservation and not vertical reservation as in the Rules. The horizontal reservation for women is in tune with the constitutional mandate and not the vertical reservation. Therefore, creation of vertical reservation for women is not sustainable. 35. xxx xxx xxx 36. However, in respect of the posts which are said to be meant for men category, we are of the opinion that women cannot be excluded from competing against the posts specified to be filled up from amongst men. Neither Article 15 nor Article 16 contemplates reservation of posts in favour of men. Such posts are required to be filled in on the basis of merit alone and if on the basis of merit women are meritorious, they are entitled to be appointed against the posts described as reserved for men to the extent of posts meant for women. 37. As per the judgments mentioned above, a combined merit list of all the candidates is required to be prepared. If on such merit, women candidate are not selected to the extent of posts reserved for them, only then women lower in merit will be selected and appointed to fill up the requisite posts meant for such women candidates. Such course alone will be an act of horizontal reservation and in accordance with the mandate of Articles 14 to 16 of the Constitution of India. 38. Therefore, we read down Rule 3 and the Appendix A to mean that posts other than the posts meant for female candidates are required to be filled up on the basis of merit without any classification on the basis of sex. Thus the words - Headmaster, Lecturer (Male) and Masters wherever they appear in the Rules will include the persons of both sexes. Thus the words - Headmaster, Lecturer (Male) and Masters wherever they appear in the Rules will include the persons of both sexes. However, such declaration of law is without examining the extent of reservation in favour of women and that whether such extent of reservation violates any law.” 4. Similar issue was examined in Ruchi Manglik’s case (supra) by another Division Bench of this Court, wherein Haryana State Education Lecturer School Cadre (Group C) Service Rules, 1998 came up for consideration. The Court struck down Rule 9 and observed as under:- “7. It is, thus, clear that when selections and appointments to public offices is to be made along with post reserved for various categories then the proper course required to be adopted is to first prepare the merit list of all the candidates without any regard to reservation. In the aforesaid list the candidates belonging to reserved category including women if otherwise come on merit can also be considered and appointed such like candidates would consume General category seats and such seats are not to be counted for the purposes of quota reserved for the aforesaid segment and the percentage of reservation shall remain intact.” 5. In view of the dictum of law laid down in the aforesaid judgments, reservation of women does mean that the remaining flats are reserved for men. 6. In pursuance of an order passed by this Court on 18.07.2011, all the successful applicants in the draw of lots were ordered to be served by way of publication in two daily newspapers and by registered posts. Subsequently, publication was carried out in ‘Dainik Jagran’ and ‘The Tribune’ on 24.09.2011. Some of the successful allottees have become party to the present writ petition as well. 7. Mr. Sheoran, learned counsel for the respondents has raised an argument that petitioners have participated in the process of allotment and have not challenged the conditions in the regulation before submitting their applications, therefore, they are estopped to challenge the regulations on the principle of promissory estoppel. 8. We do not find any merit in the said argument. There can not be any estoppel against the statute. The method of allotment of tenements is against the provisions of the Constitution and as interpreted in judgments. Therefore, in view of the judgments of this Court, the successful candidates can not raise an argument based upon the doctrine of promissory estoppel. 9. There can not be any estoppel against the statute. The method of allotment of tenements is against the provisions of the Constitution and as interpreted in judgments. Therefore, in view of the judgments of this Court, the successful candidates can not raise an argument based upon the doctrine of promissory estoppel. 9. However, the fact remains that the successful candidates have deposited certain amount. The said amount is required to be refunded as the entire process of draw of lots has been found to be unjustified. Consequently, the respondent Housing Board is directed to refund the amount to all the applicants along with interest @ 10% per annum to be compounded per month, in terms of the conditions of the brochure as interest to be charged from the allottees in the event of default subject to the following conditions: 1. The Board shall conduct fresh draw of lots from amongst the original applicants; 2. The Board shall give opportunity to all the unsuccessful applicants, if willing, to deposit the earnest money to be eligible for draw of fresh lots by way of advertisement in the daily news paper and in such other manner, which the Board considers appropriate; 3. After holding fresh draw of lots, the amount will be refunded to those candidates, who are unsuccessful in the draw of lots; and 4. The entire process is to be completed within three months. 10. With the said observation and directions, all the writ petitions are disposed of accordingly.